IN THE CASE OF:	   

		BOARD DATE:	  28 August 2014

		DOCKET NUMBER:  AR20140000543 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests an upgrade of his other than honorable conditions discharge to an honorable discharge.

2.  The applicant states:

* he did what he was told to do, be it good or bad
* he apparently snapped while on the Army's watch
* the military failed to detour or help him prior to releasing him back to the general population after he served on Demilitarized Zone in Korea
* he should be not penalized for being young and going overboard due to the things he was taught in the military
* his case is red flagged and his separation program designator code (SPD) is JFS for the good of service

3.  The applicant provides a supporting statement.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant was born on 21 November 1960 and enlisted in the Regular Army on 21 November 1978 at the age of 18 years.

3.  His DA Form 2-1 (Personnel Qualification Record) shows in:

	a.  item 5 (Overseas Service) he served in Korea from 14 March 1979 to 
7 March 1980; and 

	b.  item 38 (Current and Previous Assignments) he was assigned to Company A, 1st Battalion, 31st Infantry Regiment, 2d Infantry Division from 19 March 1979 to 6 March 1980.

4.  His record contains his disciplinary history which shows his acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for:

	a.  violating a lawful general order by failing to have in his possession his Armed Forces Liberty Card while being absent from his unit in an off-duty status on 22 September 1979; 

	b.  without authority, going from his appointed place of duty while restricted to the limits of his company on 10 September 1979; and 

	c.  unlawfully striking a Soldier in the face with a closed fist on 16 August 1980.

5.  On 3 December 1979, the applicant's unit commander prepared a Bar to Reenlistment Certificate.  The reasons cited for the bar were that the applicant's off-duty conduct had caused his chain of command considerable problems, he showed no effort to rehabilitate himself or change his misconduct while off duty, and his attitude had become unpredictable and showed negatively in his on-duty performance.  Also, the applicant had received three Articles 15 for previous violations on 1, 10, and 22 September 1979.  This Bar to Reenlistment was approved by the proper authority on 17 December 1979.  


6.  The applicant's record contains a DD Form 458 (Charge Sheet) which shows court-martial charges were preferred against him on 6 January “1980” (i.e., 1981) for:

* two specifications of wrongfully using provoking words on 3 and 
4 December 1980
* one specification of pushing and pointing his fingers in the face and trying to remove the rank from the collar of a Soldier on 4 December 1980
* two specifications of wrongfully communicating a threat on 19 December 1980

7.  On 8 January “1980” (i.e., 1981), the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an undesirable discharge, and of the procedures and rights that were available to him.  Following counseling, the applicant submitted a voluntary written request for discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.  In his request for discharge, he indicated he understood that by requesting discharge, he was admitting guilt to the charge against him or of a lesser included offense that also authorized the imposition of a discharge under other than honorable conditions.  He acknowledged he understood that if his discharge request were approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws. The applicant did not submit a statement in his own behalf.

8.  The applicant's unit commander and subsequent commanders recommended trial by general court-martial.

9.  On 30 January 1981, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10.  He directed the applicant be reduced to the lowest enlisted grade and that he be issued a discharge under other than honorable conditions.
   
10.  On 2 February 1981, a Mental Status Evaluation cleared the applicant for separation.

11.  On 10 February 1981, he was discharged under the provisions of Army Regulation 635-200, chapter 10, with an administrative discharge conduct triable by court-martial, with an under other than honorable conditions discharge and a separation code of JFS for the good of the service, in lieu of court-martial after serving 2 years, 2 months, and 20 days of active.  

12.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

13.  The applicant submitted a supporting statement from his spouse who indicates that he has nightmares and rages due to his military service.  She also indicates he is seeking help from a Veterans Center, but his case is red flagged.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service at any time after court-martial charges were preferred.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  A discharge under other than honorable conditions is normally given to an individual who is discharged for the good of the Service.

	b.  Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.

	c.  Paragraph 3-7b provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.
   
15.  Army Regulation 635-5-1 (SPD Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  The SPD code of JFS is the appropriate code to assign Soldiers separated under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial.
DISCUSSION AND CONCLUSIONS:

1.  The applicant voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid a trial by court-martial.  He acknowledged he understood he could be ineligible for many or all benefits administered by the VA and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  There is no indication that his request was made under coercion or duress.

2.  His record shows he had one court-martial charge, four nonjudicial punishments under the UCMJ, and a Bar to Reenlistment.  As a result, his record of service was not satisfactory and he did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.

3.  His record shows he was 20 years of age at the time of his offenses.  However, there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed military service.  There is no evidence he was suffering from any mental condition at the time.

4.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____x___  ___x____  ___x_____  DENY APPLICATION












BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      ___________x______________
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.



ABCMR Record of Proceedings (cont)                                         AR20140000543





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ABCMR Record of Proceedings (cont)                                         AR20140000543



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